Twitter Hands Over Info After Judge Makes It Almost Impossible For It Not To

from the sad dept

Earlier this week, we talked about a ridiculous situation in NY, where Judge Matthew Sciarrino Jr. put Twitter in a nearly impossible position if it wanted to keep fighting for the rights of its users to keep private info private. As you may recall, the government used a non-warrant process to seek private info from Occupy Wall Street protestor Malcolm Harris' Twitter account. Earlier decisions had more or less said that Harris had no standing to block the transfer of info, and that Twitter had to hand it over. Twitter sought to appeal the ruling, but the judge announced that if Twitter didn't just hand over the info, he would charge them with contempt. Even worse, he told Twitter to disclose its earning statements from the past two quarters (which is otherwise private info) so he could figure out how much to fine them for contempt. As the EFF notes, by ordering Twitter to hand over the info, it would almost certainly kill off the appeal, since the DA would immediately argue that the appeal was moot since it already had the info.

Put in such a tough position, Twitter did what it had to do and handed over the info the government is seeking on Harris. The only concession the judge gave is that the information is filed under seal for one more week. Hopefully, Twitter can convince another court to stop this in this one short week and to allow a full appeal to be heard.

The EFF has a really good explanation for why both the DA's and the judge's actions in this case are potentially so dangerous:

If Judge Sciarrino is worried that Twitter is making a mountain out of a molehill by continuing to press its challenge to the subpoena, the same has to be asked of the prosecutors who are using a misdemeanor disorderly conduct arrest that occurred more than a year ago as a pretense to obtain a wealth of information. The attempt to obtain this information from Twitter is to prove a point not even really contested: whether Harris was on the bridge during the protest.

This case was shaping up to be a constitutional showdown on a contested and unclear area of the law. Judges much higher up the judicial chain have been wrestling with the complicated issues brought about by the explosion of information turned over to third parties. In her concurring opinion in United States v. Jones, Justice Sotomayor of the U.S. Supreme Court wrote that she "would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." If a Supreme Court justice is thinking about the issues here, why would a state trial court force Twitter into a position where it has to abandon its court case seeking clarity or risk a massive fine in deciding to pursue its appeal? Some have already questioned whether Judge Sciarrino is the right judge to pass on this landmark case.

There are a lot of important issues brought up by everything that's led up to this situation, and it's unfortunate that the judge seems to have decided to toss all of those concerns overboard with his contempt claims against Twitter. Hopefully a higher court puts a stop to this in the next week.

Filed Under: 4th amendment, doj, malcolm harris, matthew sciarrino
Companies: twitter

Court To Twitter: No Time For Appeal, Hand Over Info Or You're In Contempt

from the ouch dept

We've been covering the legal fight concerning the government's desire to access Tweets and other information related to Malcolm Harris, an Occupy Wall Street protestor who was arrested. Twitter had jumped into the case to argue that users have standing to protect their own information, which the court denied. Twitter then said it would appeal, but it appears that NY State Supreme Court Judge Matthew A. Sciarrino Jr. doesn't care, claiming that its failure to hand over the info may put it in contempt of court:

The judge had asked Twitter to show why it wasn’t in contempt of court after refusing to produce information about Twitter posts by protester Malcolm Harris in response to a subpoena from Manhattan District Attorney Cyrus Vance Jr.

“I can’t put Twitter or the little blue bird in jail, so the only way to punish is monetarily,” Sciarrino said.

Twitter and Harris's lawyers point out that this seems to completely ignore Twitter's right to appeal the ruling. Sciarrino again doesn't seem to think this is an issue, insisting that his original ruling was "fair" and Twitter has had more than enough time to comply with the order. Harris' lawyer notes that this appears to be an attempt at railroading, preventing due process from happening:

“It’s pretty outrageous that the D.A.’s office wants to prohibit Twitter from exercising its right to appeal,” said Martin Stolar, a lawyer with the National Lawyers Guild who represents Harris, after the hearing.

Unfortunately, that seems to be how things work these days...

Filed Under: appeal, due process, info, malcolm harris, new york, privacy
Companies: twitter

Twitter To Appeals Court: Just Because Some Tweets Are Public Doesn't Mean Our Users Have No Privacy

from the good-for-them dept

Earlier this year, we noted that Twitter was standing up for the rights of one of its users, Malcolm Harris, who had been charged with disorderly conduct during an Occupy Wall St. protest event. The government had sought info on Harris' Twitter account using a 2703(d) order. Twitter told Harris about the request, and Harris sought to quash the order. The courts said that Harris had no standing, because he had no interest in his own tweets, based on a complete misreading of Twitter's terms of service (which actually say the user retains ownership of the content).

Unfortunately, the NY court didn't buy it, and told Twitter to hand over the info. It ignored many of the bigger questions, and basically just says that since Harris tweeted publicly, there is no issue here. But that ignores a few things: (1) not all of the info sought was just what he tweeted and (2) not all of the tweets are available publicly.

Harris has appealed, and it's good to see that Twitter is also appealing, arguing that the court made some significant mistakes. The company basically reiterates its earlier argument that Harris has standing to quash the order, and also some reasonable privacy protection in some of the content sought.

Twitter respectfully submits that its users have standing on three separate and independent grounds to move to quash subpoenas directed to Twitter for their records. First, Twitter’s users have standing under New York law because Twitter’s Terms of Service have long established that users have a proprietary interest in their records. Twitter users own their Tweets and should have the right to fight invalid government requests. Second, Twitter’s users have standing under § 2704(b) of the federal SCA, which provides that a user who receives notice of a subpoena for their account records “may file a motion to quash such subpoena . . . in the appropriate . . . State court.” 18 U.S.C. § 2704(b). Finally, Twitter’s users have standing based on a long line of precedent establishing that individuals whose constitutional rights are implicated by a government subpoena to a third party can challenge the request. Accordingly, the Court should find that Twitter’s users have standing on any one, or all, of these bases.

Defendant’s Tweets are also protected by the Fourth Amendment to the U.S. Constitution and art. I, § 12 of the New York Constitution because the government admits that it cannot publicly access them, thus establishing that Defendant maintains a reasonable expectation of privacy in these communications.

Seems pretty simple and straightforward, though the courts haven't bought this argument yet. Hopefully the appeals court is a bit more enlightened and/or informed.

Filed Under: malcolm harris, privacy, protests, standing
Companies: twitter

Twitter Forced To Hand Over Occupy Protestor's Info

from the privacy? dept

We recently wrote about Twitter standing up for a user, Malcolm Harris, who had participated in the Occupy Wall St. protests, and whose info was sought by the government under a 2703(d) order (which has fewer protections than an ordinary warrant). Twitter told Harris about the order, and Harris sought to have it blocked -- but the court claimed he had no standing to do so, as it was just an issue between the government and Twitter. Twitter pushed back, noting that individuals control the content of their own account, so Harris should have standing. Unfortunately, a NYC judge has told Twitter to give up Harris' info, though it did say that the government would need to get a warrant for the last day's worth of info, due to a technicality on timing. The court basically punts on the larger issues, focusing on the fact that most of the information requested, Harris' tweets, are already public, and thus there's little to be concerned about. Of course, if that's the case, it's unclear why the government needs to request info from Twitter in the first place...

Filed Under: malcolm harris, occupy protests, privacy, standing, warrants
Companies: twitter

Twitter Challenges Court Ruling That Twitter Users Have No Standing To Protect Their Own Account Info

from the good-for-them dept

We've seen that Twitter has taken a legal stance in the past to try to protect the rights of its users against the government, and it appears to be doing so again. The State of New York has filed a lawsuit against Malcolm Harris, an Occupy Wall St. protestor who was charged with disorderly conduct. Harris has a Twitter account at @destructuremal, and the government issued an infamous 2703(d) order to compel Twitter to hand over information about Harris' Twitter account. Twitter, as it should, informed Harris of the request, and Harris sought to quash the order. Amazingly, the court refused, not because it disagreed with the stance, but because it claimed that Harris had no standing to challenge the disclosure of his own information, by literally claiming that Harris had no interest in his own tweets.

This was based on a total misreading of Twitter's terms of service, which have been clear from very early on that poster's retain control over the content in their tweets. All they do is grant Twitter a license to display them. The NY court, bizarrely, interpreted this to mean the user gave up control over the tweets, even though Twitter's own terms of service say exactly the opposite.

In response, Twitter has now stood up for its user and filed its own motion in support of Harris, that the April 20th order stating that Harris had no standing should be rejected. It points to the above, as well as to US law that says users can challenge 2703(d) orders. On top of that, it points out that complying clearly seems to violate the 4th Amendment. In an interesting argument, it relies on the recently decided Jones case that said that even if certain information is "public" (e.g., location or tweets), it may still require a warrant to collect.

As Twitter notes, saying that its users can't move to quash such requests sets a problematic precedent:

If the Order stands, Twitter will be put in the untenable position of either providing user communications and account information in response to all subpoenas or attempting to vindicate its users’ rights by moving to quash these subpoenas itself--even though Twitter will often know little or nothing about the underlying facts necessary to support their users’ argument that the subpoenas may be improper.

It's nice to see a company like Twitter standing up for its users. It's unfortunately rare these days, when many companies simply roll over the second the government comes calling.

Filed Under: malcolm harris, occupy wall st, terms of service
Companies: twitter